As USTR Insists ACTA Doesn't Need Congressional Approval, Wyden Asks State Dept. For A Second Opinion

from the that's-not-what-the-constitution-says dept

Back in October, we noted that Senator Ron Wyden had sent the Obama administration a letter pointing out that it appeared unconstitutional for the President to sign ACTA without getting Congressional approval. The USTR had been insisting that because ACTA does not require any change to US law, it doesn't need any such approval. Of course, that ignores a few issues. First, while it may not change US laws, it seems likely that it would restrict future changes to laws if we wanted to stay in compliance. For that reason alone, it should have Congressional approval. But the larger point is that international agreements signed without Congressional approval -- so-called "executive agreements," -- can only be done for issues solely under the President's mandate. Copyright and patent laws, however, are the mandate of Congress, not the President.

The statement by the USTR confuses the issue by conflating two separate stages of the process required for binding the U.S. to international agreements: entry and implementation. It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law. But, regardless of whether the agreement requires changes in U.S. law, a point that is contested with respect to ACTA, the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress' authority, absent congressional approval.

Thus, Wyden asked the President to explicitly state that ACTA was not binding and does not create any international obligations for the US:

I request that as a condition of the U.S. putting forward any official instrument that accepts the terms of ACTA that you formally declare that ACTA does not create any international obligations for the U.S. -- that ACTA is not binding. If you are unwilling or unable to make such a clarification, it is imperative that your administration provide the Congress, and the public, with a legal rationale for why ACTA should not be considered by Congress, and work with us to ensure that we reach a common understanding of the proper way for the U.S. to proceed with ACTA.

Instead, however, the USTR responded (embedded below) with the same exact response it's been giving out all along: nothing to see here because ACTA requires no changes to US laws. There are two very big problems with this. First, it's not clear that's even true. The Congressional Research Service's analysis of the language of ACTA (done at the request of Wyden) pointed out that ACTA may require changes to US law. The problem (and it's a big problem) is that the language is so vague, it all comes down to interpretation.

Second, even if the USTR is correct that ACTA requires no changes to US law, that's answering a different question. Wyden did not ask about what ACTA required to implement. He asked what was required to approve it. And the law does not say that the President can declare something an executive agreement if it doesn't require a legislative change -- but that he can only do it for things under his sole mandate. ACTA clearly does not qualify. Either way, this is a really disingenuous move by the USTR. It answers a different question and does so possibly inaccurately. And, nowhere in the letter did anyone respond to Wyden's specific request for a declaration that ACTA creates no international obligations for the US.

In response, Wyden has now sent a second letter (also embedded below) to the State Department, asking it to look into this and clarify if a mistake has been made. Here are the specific questions he asks the State Department to answer:

If ACTA is entered by the President without Congressional consent, what will be the nature of the agreement and its legal implications under U.S. and international law? For example, is it the Department of State's opinion that ACTA will be equivalent to a non-binding "memorandum of understanding," like some of the intellectual property agreements cited by USTR in the attached letter? Can ACTA be a valid and binding "sole executive agreement" under the U.S. Constitution, even though the regulation of intellectual property is not a sole executive function under the Constitution? Or must ACTA, to be binding, be a form of Congressional-executive agreement by virtue of ex ante or ex post congressional approval?

What is the nature of the international legal obligations that ACTA would create? Would the U.S. be in violation of the agreement if the Congress changed federal law in a way not consistent with the agreement, for example by ridding our law of statutory damages for online copyright infringement? What would be the implications of such a violation?

What are the constitutional limits on the President binding the U.S. to legislative minimum standard agreements over matters delegated to Congress under Article I Section 8 of the Constitution? Is the President free to bind the U.S. to any international agreement he chooses merely because he deems them to be consistent with U.S. law? (It is worth noting that many experts believe that ACTA is not, in fact, consistent with current U.S. law.)

These are good questions. The first and third are the crux of the Constitutional issue, but the second one is the really important one from a policy standpoint. We've argued that a rather serious problem with ACTA is that it will severely limit Congress' ability to fix certain aspects of copyright law. The example used by Wyden is a good one. There's a very strong argument to be made that statutory damages in copyright law are ridiculous, disproportionate and out of control. Fixing them would be a big help in making sure that copyright law isn't used regularly as a nuclear weapon against people who simply can't defend against the possibility of ridiculous damages awards. Another example would be if Congress decided to walk the courts back on their made up idea of "inducement" being a form of copyright infringement. Under ACTA, either of these moves would put the US in violation. So while it may not require legal changes to implement today, it may significantly prevent Congress from making those changes. And shouldn't Congress have the right to weigh in on that?

Re: Ye Aulde Wisdome:

The enemy of my enemy is my friend.WARNING! Not to be taken literally.I don't care if it's Batman or the Queen of England who's coming up with some legitimate reason why ACTA (shyte) should be delayed/stopped/beaten-with-an-ugly-stick; as long as somebody is doing so, that's a GOOD thing.

Re: LOL

"I request that as a condition of the U.S. putting forward any official instrument that accepts the terms of ACTA that you formally declare that ACTA does not create any international obligations for the U.S. -- that ACTA is not binding. If you are unwilling or unable to make such a clarification, it is imperative that your administration provide the Congress, and the public, with a legal rationale for why ACTA should not be considered by Congress, and work with us to ensure that we reach a common understanding of the proper way for the U.S. to proceed with ACTA."

Re: i see

Hey try not to lump all of us in with our political leaders. The morons in charge of this country have quit listening to the people and just do what they please. It is not like I want this in any form. I don't want the US to sign it and I don't want any other country to sign it ether.

The problem is that the idiots passing these laws don't care about the people they are supposed to represent. They are just doing whatever they think will get them the most money.

New button

Mike, I think it's time to add a new button. SOPA/PIPA/ACTA supporter, which censors a post by blacking it out. After all, these shills/ trolls are all for censorship and we would have a way to avoid reading their tripe. Win/win.

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Mr. Masnick is once more republishing an article he wrote about a question that was asked and answered many months ago, to the apparent satisfaction of Senator Wyden, in an attempt to create the perception that the process by which ACTA has been enacted is constitutionally suspect, infirm, and plainly illegal.

Mr. Masnick would do well to closely read the various means by which treaties and non-treaty international agreements may be negotiated and executed in accordance with legal precedence, guidance and standards articulated by the Department of State under 11 FAM 721.2, which can be found at:

Mr. Masnick is not a lawyer, and his repeated declarative statements concerning what the law "is" does a grave disservice to his readers, making his site a source of much of the FUD that is latched upon and makes the rounds across the internet in a transparent attempt to advocate positons calculated to fan the flames of panic among those unfamiliar with basic principles of law, as well as facts associated with specific matters.

For example, Mr. Masnick would have his readers believe that matters associated with Article 1, Section 8, Clause 8 are the sole and exclusive province of Congress, and yet time and time again this has been shown to be demonstrably false. Of course, all such demonstrations are dismissed by pejoratively calling those who do so "copyright maximists" and completely biased in their legal analysis. By using this meme, as well as ofter calling such persons "disgusting" and "pathetic", it is clear he hopes that his readers will resoundingly reject any such analysis.

More importantly, in this particular matter Mr. Masnick fails to consider the fact that the Legislative and Executive branches of our federal government each exercise powers conferred to them by our Constitution. In arguing that the treaty power articulated in Article 2, Section 2 is controlling, he conveniently ignores altogether Article 2, Section 1.

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Did you and I even read the same article? This is about Wyden finally getting a response from the USTR, realizing the answer had nothing to do with what he asked and asking more questions again. How is this not a worthy update?

On top of that how can you say it was answered to Wyden's satisfaction originally when he turns around and asks for them to actually answer the questions he asked?

I don't care that Ron Wyden's reasons may not be altruistic. His seems to be the only voice in Washington questioning - in any form - ACTA. The RIAA, MPAA, Big Pharma et al are working behind the scenes worldwide to implement ACTA, which is far more nefarious and all encompassing than SOPA or PIPA could ever hope to be. Kadir Arif, the European Parliament's rapporteur, and Senator Ron Wyden are two very lonely voices in any government presenting what's wrong with ACTA - though I wish Senator Wyden's language was more forceful about it.

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Perhaps, AC 22, you could quote the relevant sections for us, that we might know that you know what they are. You also fail to provide any evidence for how Article 1, Section 8 Clause 8 matters have been shown false. Mike has never claimed to be a lawyer, yet you desire to imply that we think he is. We know he is not. But he consults with many legal experts quite often, as you should know if you have read this site before. So his statements about the legality of certain things are not without merit.

Your link merely goes to a site for the State Department, and no particular statute, and therefore proves nothing. Any kind of agreement that limits our fundamental rights, as ACTA does, must be opposed, and its constitutionality is indeed suspect. Otherwise, the President would not have attempted to circumvent Congress as he did. And by your opposition to us revealing the true nature of ACTA, you confirm your support of censorship and the suppression of human rights.

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Mr. Masnick would do well to closely read the various means by which treaties and non-treaty international agreements may be negotiated and executed in accordance with legal precedence, guidance and standards articulated by the Department of State under 11 FAM 721.2, which can be found at:

There is no startute with that reference in the document you linked. Please point out where you actually mean to.

Mr. Masnick is not a lawyer, and his repeated declarative statements concerning what the law "is" does a grave disservice to his readers, making his site a source of much of the FUD that is latched upon and makes the rounds across the internet in a transparent attempt to advocate positons calculated to fan the flames of panic among those unfamiliar with basic principles of law, as well as facts associated with specific matters.

See also: Fox "News", MSNBC, ABC. WE cannot be objective in matters which aren't very clear. The Foundinhg Fathers tried to be as clear as possible - remember that a number of them did not like, want or request IP laws.

For example, Mr. Masnick would have his readers believe that matters associated with Article 1, Section 8, Clause 8 are the sole and exclusive province of Congress, and yet time and time again this has been shown to be demonstrably false.

Do you have a cite for that?

More importantly, in this particular matter Mr. Masnick fails to consider the fact that the Legislative and Executive branches of our federal government each exercise powers conferred to them by our Constitution. In arguing that the treaty power articulated in Article 2, Section 2 is controlling, he conveniently ignores altogether Article 2, Section 1.

Where in that does it explicitly say that treaties can be execute3d without 2/3rds Senate approvel, even if it's an executive agreement and not a treaty?

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The Executive Branch is co-equal with the Legislative and Judicial Branches. One does not work for the other, and the letter that was sent by Mr. Wyden makes it seem as if this is something about which he is unaware.

Obviously, Mr. Wyden is aware of this since he is, after all, a lawyer. I am curious how he would react were he to receive a somewhat equivalent letter from the President asking him to articulate the basis under which Congress is proceeding on a legislative matter. I believe we all know the answer.

BTW,based upon the specific language used in his letters, it is abundantly clear that they are being ghost-written by persons outside of our federal government. I say this because I have seen virtually the identical language used in communications prepared by at least one of the so-called "civil societies".

Listen here you chubby sack of crap

The president has the authority to enter this agreement. Period. Just because you don't like it doesn't mean it's something that needs to be looked into. I don't like cake, but I don't see any reason for congress to look into anything cake related.

Senator Wyden is just grandstanding so that he can get a job with Google once he is done with being a politician. The freaking revolving door between politics and big business is retarded, and it's just going to get worse now that Big Search is in on buying politicians.

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Your comment sounds "scholarly" but it didn't actually address the crux of this article. Senator Wyden again asked for clarification from the USTR, this time asking specific questions requiring specific answers yet the USTR merely rebuffed his questions with the same blanket statement given previously.

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I stated that "Mr. Masnick is not a lawyer", so I am implying nothing. I am stating a well-known fact.

Yes, he does frequently say he has consulted "legal experts", though who they are is unknown, so one is unable to form an opinion as to the degree of their expertise.

Perhaps if you read for comprehension the link I provided it may either answer your questions or provide you the information you need to independently read other sources of authorative information.

Your "opposition to us" is quite telling. I expressed no opinion in my post concerning ACTA. All I did was attempt to point out that declarative statements such as made in Mr. Masnick's article manifests are highly suspect and should not be taken at face value as authoritative and controlling.

For being a "logician", you seem much to inclined to accept statements by others at face value. That is certainly not in keeping with being a "logician".

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I also see that you are attempting to improve your troll skill, I would suggest future troll attacks include a peer reviewed journal, and atleast 4 other reputable sources cited in APA format and a 5 page paper detailing what you are taking exemption to and why. B-

Re: Listen here you chubby sack of crap

[citation needed] The entire crux of the issue is that Wyden, et al. doesn't believe that the President has that authority. Or did you read the article?

"Senator Wyden is just grandstanding so that he can get a job with Google once he is done with being a politician. The freaking revolving door between politics and big business is retarded, and it's just going to get worse now that Big Search is in on buying politicians."

Projection much?

Please cite every politician who has been hired by a prominent tech company following significant lobbying and quid pro quo.

After you spend hours searching and searching for results for that query, cite every politician who has been hired by a media/entertainment company following significant lobbying and quid pro quo. Oh wait...too many results to list here. Never mind.

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The Executive Branch is co-equal with the Legislative and Judicial Branches. One does not work for the other, and the letter that was sent by Mr. Wyden makes it seem as if this is something about which he is unaware.

Right, but they all have their own areas they are responsible for and neither copyright nor foreign trade matters are under the jurisdiction of the executive branch.

Obviously, Mr. Wyden is aware of this since he is, after all, a lawyer. I am curious how he would react were he to receive a somewhat equivalent letter from the President asking him to articulate the basis under which Congress is proceeding on a legislative matter. I believe we all know the answer.

Actually I hope Wyden does not know what you claim he does because he is a lawyer, he should know how the government actually works. Furthermore if the president were to say ask why congress was trying to direct troop deployment or other military matters then I would hope they would give a serious answer. Since Congress has not been trying to impinge on the Executive branches privileges this of course has not happened.

BTW,based upon the specific language used in his letters, it is abundantly clear that they are being ghost-written by persons outside of our federal government. I say this because I have seen virtually the identical language used in communications prepared by at least one of the so-called "civil societies".

Well since even you say that '[evil quote marks]'civil societies'[/evil quote marks]' are asking the same thing and they and the government are supposed to be representing and working for the people I fail to see an issue here (if its even true). This is FAR less of an issue than say corporations writing legislation for us and politicians passing it without even reading it.

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Mr. Wyden's 12/5/2011 letter was nothing more than a repeat of his October letter in which he asked the very same questions of Mr. Kirk, a demand of sorts that Mr. Kirk quite appropriately and courteously rebuffed.

Some here have opined that Mr. Wyden is merely grandstanding. There is much merit in their opinion.

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You make a comment asking why Senate approval is not needed for an agreement that is not a treaty? The simple answer is that Senate advise and consent under Article 2, Section 2 refers only to treaties.

There is an important distinction to be made. A treaty in one form may be self-executing and by its terms change US law. This is permissible so long as consistent with the Constitution. Some treaties are not self-executing, in which case Congress would have to change US law legislatively.

Executive agreements do not change US law. They must, however, comport with US law and the Constitution. Based upon my review of ACTA, it is my view that neither of these constraints pertain, and, thusly, the use of an executive agreement is within the power independently conferred upon the President under Article 2, Section 1.

No honest individual would support that and we will lose all credibility if we implement something like that, it assignes blame totally subjectively to those who aren't responsible. Uh, did anyone actually read this thing before signing it?

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Congress is conferred the power to craft such laws should it choose under Article 1, Section 8, Clause 8. Article 2.1 does not confer such power on the President. What seems overlooked here is that the President is not crafting such laws, but is instead proceeding under his Article 2, Section 1 power, which is independent of Article 1.

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Then you are way out to lunch, all Mike is doing is reporting on what Wyden is asking, it should be Wyden you are harping on all left right and center for trying to do his job, he is the one asking the questions, Mike is just saying that he agrees with him that they are imporatnt questions. You are still allowed to talk about stuff and to voice your opinion without being a lawer (thank goodness).

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As always, you're full of shit. You don't even try to prove your claims but act as if you know what you're talking about.

Your statements don't prove anything, you don't know about copyright law, which IS Congress' main area, and the ACTA does not have authority when even Biden raised a fit when Bush did it (to give an example, not turn this into a partisan arena).

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Oi, the whole problem here is this Executive Agreement of is over matters that Congress controls. It's not about making new laws its about entering into agreements on a subject the Executive branch has no jurisdiction over.

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Secondary liability based upon "inducement" is already embraced by US law, specifically, federal common law as articulated by the Judicial branch.

The truth be known, law is created by all brances of government. Congress does so by legislation. The Executive does so via, for example, federal rulemaking. The judiciary does so via constitutional interpretation and common law. It is a mistake to assume that all law is the exclusive province of Congress.

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Might I suggest you visit venues where copyright law is discussed in detail and make your arguments there? I believe you will quickly learn there are many facets to this and other related issues, facets that elaborate upon why what one is taught in Civics 101 are not as clear cut as many seem prone to believe.

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I know they do it in the US, but it's completely ridiculous, and I didn't realize we (in Canada) had agreed to implement that crap here. Misassigning responsibility only makes things worse. People will lose respect for the law even more than they already have.

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We're cracking down on vandalism.. We've arrested all the hammer retailers and spray paint manufacturers and for their part in the vandalism, but this plague of vandalism just gets worse.. We don't understand...

Re: Re: Listen here you chubby sack of crap

The entire crux of the issue is that Wyden, et al. doesn't believe that the President has that authority. Or did you read the article?

Yeah, and I told you WHY Wyden was doing what he was doing. That's the crux of my argument. Or did you read my comment?

Please cite every politician who has been hired by a prominent tech company following significant lobbying and quid pro quo.

Gotta start somewhere buddy. You don't think Big Search and other tech companies realizes that they need to get in on the game? Please. That's like saying someone couldn't possibly be a murderer because they've never committed a murder before.

After you spend hours searching and searching for results for that query, cite every politician who has been hired by a media/entertainment company following significant lobbying and quid pro quo. Oh wait...too many results to list here. Never mind.

THE TECH INDUSTRY HAS NEVER DONE THIS BEFORE SO THEY CAN'T POSSIBLY BE DOING ANYTHING WRONG NOW! Shut up you ignorant little bed wetting imbecile. You just say never mind because you don't want to hear that all things that happen have to start somewhere. Wyden realizes that tech companies make more money than entertainment companies so he wants that bribe money and a position there. If you can't see that you're a willfully blind moron or a half retarded monkey just flinging poop at the computer.

Re: Re: Re: Listen here you chubby sack of crap

Wow. I'm glad that I keep good company with Wyden in your twisted world of people who you clearly know something about without actually knowing about them. All these ad hominem attacks really prove your point... /s

You're speculating as to why Wyden might be doing this without providing any evidence. You say that Google is specifically buying off politicians but you provide no evidence and scoff at the idea that you should have to.

In contrast, the revolving door for entertainment and media companies and government officials is well documented - Dodd being a very recent and highly relevant example.

So again, please cite actual statements/released emails/documents/whispers from the paranoid conspiracy theorist you talk to at the coffee shop that proves that Wyden is doing this for the reasons you're suggesting.

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So since Mike is not a lawyer we should question whether his statements hold merit or not, but without knowing anything about your background we are to take your review of ACTA as more correct than that of Senator Wyden? Obviously Senator Wyden, and many others, are concerned that while ACTA doesn't directly change US law it may conflict with current laws and in order to comply with ACTA we will have to change laws. That is why he is asking the questions he is, even though no one wants to answer him.

I'll even give you the tldr; version: Wyden's biggest campaign contributors are Nike, a bunch of law firms, healthcare organizations, and businesses local to his district.

I was able to find a $2000 personal contribution to Wyden's campaign from Eric Schmidt, but that's a paltry amount compared to his big supporters and the amount that Google could actually give if it wanted to buy off politicians.

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Please point out where in the fuck I said they were giving campaign contributions? Are campaign contributions equal to an agreement for a high paying job once he's out of office? When the hell did those two things become equal?

With as much talk as I've seen from people around here about how their opponents are confusing the issue, I'm a little surprised that ANYONE on the side of chubby Masnick with his chubby for Google would ever dare doing that for fear of being called out.

Re: Listen here you chubby sack of crap

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Thank you for the proof... When Mike started talking about SOPA/PIPA; Shills and Trolls came from everywhere and said STOP... its done, your wrong... and every other way they could think of to try and steer that boat away, and it proved that they where scared of the internet finding out what crap was going on.

Now ACTA has hit the Internet Radar, people are asking questions and pushing buttons... and sure enough here comes a another one... attacking credentials and trying to steer the conversation away from the points... IT PROVES that they don't want the internet weighing in again and bringing this to the light of day (especially in an Election year?)

The Points:
Copyright is a Congressional Power
Treaties must be ratified by the Senate.
The President/Executive/USTR may craft Executive agreements, but they must be constrained by the following:
It can not cover something that the Executive Branch has no power over (AKA Copyright/Patents/IP)
It can not change existing the laws or Constitution.

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As the leaders of our government some of us would like a clear and succinct explanation as to how our president maintains that he can execute executive agreements regarding copyright where it is understood that this purview is with Congress.

After reading this short thread there is still a distinct lack of clarity as to how this particular power over this particular topic can be usurped by our president.

In short, it is the duty of at least one representative from our Senate to push for and attempt to validate the reasoning supporting this executive agreement and thus validate both its existence and its legality.

This is, after all, our country and our government and much trouble shall ensue should our President lead our society astray for the interests of a small portion thereof.

Undue and unjust constraints on culture, the world's culture, will no longer be tolerated. To say nothing of the potential for constraints upon the existence and the progress of free speech nor of the tolerance for assault on privacy for any individual.

I would like a clear statement indicating how the president can execute executive agreements regarding copyright.

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By "Big Search" do you mean your return key? Or a shelf of encyclopedias?

You wouldn't happen to be one of those who use a term like "Big Hardware" too would you?

Are you one of those believers that neither would exist were it not for "Big Media's" "content"?

Yeah? Shielded behind the veil of anonymity you call a guy chubby and make oh so cowardly attempts at personal insults because why again? Because you're a stupid, cowardly, sniveling waste of a brain perhaps? Because you have an awkward fixation on big things?

Would you please provide evidence or reference for this statement of yours: "The president has the authority to enter this agreement. Period."?

As a member of this society I demand to know, exactly, how this could be true. Because if it is true then I need to gauge the precise amount of force that would potentially be required to set this rather large entity of a country, world, onto a corrected path. A path that leads in a wholly opposite direction than that of subservience.

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Copyright is a law enacted by Congress pursuant to the power conferred it by Article 1, Section 8, Clause 8 of the Constitution.

Treaties (which have the full force and effect of law) require the advice and consent of the Senate pursuant to Article 2, Section 2. In no event may a treaty conflict with the Constitution.

Non-treaty international executive agreements (which do not have the full force and effect of law) may neither conflict with the Constitution nor laws duly enacted by Congress. This is not the same as saying that Congress must approve of all matters undertaken by the President that involve copyright and other laws enacted by Congress pursuant to an Article 1 power.

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Yes, in this case I believe the position of his administration is well made. He does have independent constitutional authority to proceed (Article 2, Section 1), there is nothing in the agreement recently signed that in my view raises any constitutional red flags, and the agreement in my view is consistent with US law and does not intrude on the powers held by Congress under Article 1.

Obviously, reasonable minds can differ, and I have no doubt that some will disagree with my view. Such is the nature of law.

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I can not quite see how A2S1 has overriding authority over the enumerated powers of Congress in this instance. And further, that this is an attempt to regulate commerce with many foreign nations I can not, at this point, determine any authoritative exemplar that supports your position.

I would, however, like to delve into the nature of the present, not withstanding law. You are aware, I am hopeful, that the Internet is feeding society's pent up need to reach out and challenge the atrocities of our present day and in all forms that they may present themselves? You are aware that attempts to infiltrate, suppress or otherwise control this open line of communication will, in fact, pose great risk and will be perceived as oppression? You are aware that regimes are being challenged, regimes are falling and individuals are called to task for their positions like never before? You are aware that in representing your clients as you do (assumption) that you risk contributing to, and the escalation of, the power of the few over the many?

This is a communications platform, as surely you are aware, and to posit that media, traditional media, is a driver of and not a rider on that medium and that the assertion of power and control over that medium by and for the sole interests of a rider is a position that you should consider with great and careful deliberation.

The sets we claim are different. Mine is the set of the many and yours is the set of the few. The street that you would wish to lay claim to does not belong only to you. Those that support your position would lay waste to the rights, desires, liberties, privacy and futures of all of society. Surely you can not believe that a song or a movie can be allowed to take precedence? The risks are few yet they are mortal risks to the true American concept of freedom and they can not stand. Such is the nature of things.

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So in other words we need to be invited to the back rooms where the law is twisted around its ass to scratch its head for the sake of pleasing key stakeholders, the government should be as simple as it was conveyed in civics 101 here is the basic outline that should always be followed, the elected legislature writes the laws, the executive branch enforces the laws and the judicial branch interprets the law. there should not exist cases where our president who acted so high and nightly about lobbyist during is campaign that was huge contributed to by Hollywood appoints his key hollywood funds gatherer ambassador to the Bahamas then sends her back to hollywood when he needs more money. (http://www.huffingtonpost.com/2012/01/04/obama-hollywood-fundraiser_n_1184838.html). this clearly engenders a bias on the presidents part and makes things like acta suspect especially when all attempts at a key entertainment industry piece of legislation have been inroaded.

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I read vociferously on a very wide variety of subject matter, including that which you discuss with such passion. I do believe that the internet is nothing more than a series of interconnected "nodes" (in quotes because I use it very generically) that carries communications worldwide, and that its potential is only now starting to be realized.

Where we may differ is that I believe people should be held accountable for their actions when those actions are clearly contrary to law, whether in the brick and mortar world or over the internet.

I am cognizant of concerns that have been raised in various quarters, and believe that such concerns deserve fair consideration on the merits. I am also cognizant of the wide gap between what content creators believe is fair and the beliefs held by others. These beliefs are congruent in some areas and not congruent in others. My view is that no matter what belief one may hold, each position must be respected and a concerted effort undertaken to craft approaches that are fair to all. In a democratic republic such as ours compromise is an essential element of our political process.

The reason underlying my view that compromise is essential is that the conduct of commerce depends upon an agreed set of "rules" in order to foster a measure of predictability, for without it commerce can grind to an unceremonious halt.

Section 512 is one such means of establishing predictability, as is Section 230. Various court decisions have established other means of predictability. Whether or not one agrees, I also happen to believe that agreements among nations can likewise have a beneficial effect.

In other words, I do not in the least discount your views. I merely temper mine with experience that long ago informed me parties must work together to resolve their differences, and that from doing so what eventually emerges is by no means perfect, but at least a mutually acceptable compromise that pays heed to both sides results.

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It would be nice if Civics 101 was spot on, but it is not. There are far to many variables that come into play. Fortunately, we have a judicial system that sorts through these variables in a thoughtful, deliberate, and informed manner.

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I believe you will quickly learn there are many facets to this and other related issues, facets that elaborate upon why what one is taught in Civics 101 are not as clear cut as many seem prone to believe.

And once you can't answer the questions put forth, you hide behind your anonymity and non sequitars.

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I quite agree with the basic premise of your words. What I may be struggling with, apart from who will have the final say on the direction of ACTA in the US, is a rather consistent decline of socially acceptable limits on copyrights. Commerce does, indeed, demand rules that necessitate means and ends. Herein is the purview of Congress as enumerated clearly in the Constitution.

There are subtleties in your words that drive the force of argument. The potential of the Internet, for example, has been realized. It would seem these content creators, those to whom you refer, are only recently coming to a realization themselves and as such would much rather deploy, through undue influence, a fundamentally upsetting groundwork so that they can distribute their product within a framework of conditions that suit their perceived needs. An historical perspective if you will.

There has not been any discussion that I know of that even begins to reveal grievances for and around both the current state of global distribution nor of any proposals for the advancement, or containment, of copyright protections today. There have been only statements seeming derived from a distinct lack of multifaceted discussion.

I do believe that there are, in fact, three sides, not two. The third side is the public and that public is no longer limited to the customary peoples of a single nation. The lack of consideration for those people and the traditional intricacies and frameworks of trade are being revealed daily as the backroom deals and private negotiations they've traditionally been. There are ever growing numbers of people that refuse to oblige this business of government being a pinnacle of business influence.

Those two side to which you seem to refer to, business and government, are inadvertently creating a global rift via their undue pressure on foreign nations and peoples, to say nothing of our own. Current allies are government allies. A government not allied with its own people is a danger and a threat to all governments of all people. If there is truly no compromise than there can be no agreement and if there can be no agreement without compromise there will be no republic.

(Most of what I wrote, was written before your last posts… but the bigger part of it still applies, so I’m not going to make adjustments now).

(I’m probably going to offend you… but maybe I won’t, after all, 33 years in the jungle we call society must have given origin to pretty thick scales. Since I don’t know you, this is mostly not a personal attack, these are just my thoughts in the matter and in the way I see the actions of some people, mainly the ones with power… influenced by some accumulated indignation)

I honestly hope you are happy with your life. But I have to say, if I was in your place, I would not be. As you said, you are not arguing if ACTA is a good or bad thing, you are not even arguing if it is in the best interests of the people… worse than not seem to be having an opinion, you don’t’ seem to want to express your thoughts and concerns… you don’t even seem to care for anything other than the interpretation of the law (or to question the rightfulness of those already stated) …. so it does not make a difference to your if SOPA passes… you are already abdicating the rights that this “treaty” jeopardize. I can kind of understand why a person that lived his/her life choosing to interpret the law the way it was needed to at the time, since is taught in law 101 that truth is overrated and subjective, but I can’t understand how you are able to ignore the way this “treaty” will undermine the freedoms and feelings of so many people (most that have not realized yet, or don’t even know how ACTA will be “applied”, or the precedent dangers it brings). I understand that you have to do your job (that I believe is mainly damage control), and the “incentives” are probably very “unrefusable”, but I find it very disturbing that some people can just sell their ideals and soul. And please, don’t insult me telling me you are not working for someone, or at least have ulterior motives… after all you are a person with 33 years of experience, that clearly are not “interpreting” the law out of beliefs or ideals, you have no strong feelings (or showed a personal opinion) whatsoever in the matter, and yet still you are, spending hours, on a week day, trying to convince laymen strangers in the internet that you are right about the law (even if the discussion are more about feelings of indignation and discontent), pertaining a subject that you are neither against or in favor…. All of that while being anonymous… You can call us ignorant in the matter of the written law, but please don’t take us for stupid and complete ignorant… I’m sure every person that posted have more knowledge, in a specific subject, than you do (even if that subject means nothing to you)… so it seems that, although many people here are ignorant, on one specific subject, to your eyes, you on the other hand are ignorant, on many subjects, to our eyes as a group… but I’m sure you know that, and I’m sure don’t really care.

From one Anonymous Coward to an even more Coward Anonymous (... this is not an opinion, it is a fact, since you have posted under this name more time than I did ^^).

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Very well, and to highlight just one of many areas where Civics 101 generally describes the ideal view, perhaps you would care to elaborate on the demise of the "Non-Delegation Doctrine" and the reasons underlying its demise.

For the benefit of those unfamiliar with the doctrine, it used to be the generally accepted view that Congress could not constitutionally confer law-making (legislative) power on the Executive.

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I try and limit my comments regarding ACTA to what the agreement says and how I believe, based upon judicial precedent, it will in my opinion be interpreped and applied by the courts should it be litigated.

I do this simply because those on both sides of the issue do present much FUD, and it is this FUD that leads to discussions that are largely based upon perception, and not fact.

The fact I do not express an opinion (which I do have, by the way) is irrelevant since my objective in commenting has nothing to do with my personal views. I save my opinions for discussions with others within the professional organizations such as the ABA.

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I have noted that you regularly provide comments on sites that are directed to discussions of law. I have also noted that despite the push-back on your comments, neither you nor those who respond to your comments proffer expletives.

Fight Them

It seems to me that the strategy of the pro SOPA / PIPA brigade ( the content industry ) is to blitz us with these bills hoping one of them will finally slip through into law, ACTA is just another and there will be more as yet unknown threats in the future.
Its going to be a long war with many battles , the enemy is cunning and utterly determined to win.
Our only defence is keep watch and fight every advance with everything legally that we have , boycott the content industry and all its products, take away its money, we take away its power.

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There is an individual named "Jay" who regularly comments at Copyhype, which comments are virtually identical to those you make here. If you are not that individual, then please accept my apology for assuming so.

As for "Copyright 101", I am intimately familiar with Title 17, administrative rules enacted in accordance with the Administrative Procedure Act and pursuant to Title 17 (such rules can be found within 37 CFR), and case law as articulated by both state and federal courts. Moreover, I am similarly familiar with the law's history (Copyright 101 lesson: Jefferson's letter to Issac McPherson concerns patent law), both foreign and domestic. When I submit a comment I rely on many years of study of substantive copyright law and its history.

I can only wonder if you have made the same effort. If you have, then surely it is an easy matter for you to elaborate on the "Non-Delegation Doctrine" and how it relates to the Executive Branch of our federal government in general, and copyright law in particular.

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Where we may differ is that I believe people should be held accountable for their actions when those actions are clearly contrary to law, whether in the brick and mortar world or over the internet.

It's really slimy to claim your opponent believes people should not be held accountable for illegal actions.

My view is that no matter what belief one may hold, each position must be respected and a concerted effort undertaken to craft approaches that are fair to all. In a democratic republic such as ours compromise is an essential element of our political process.

No matter what belief? If your opponent feels we should pass a law that says all puppies must be burned to death, you would respect that position, and make an effort to find a compromise?

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Slimy? Not at all. Just consider the many comments on this site that decry secondary liability for copyright infringement, as if those who engage in egregious acts short of direct infringement should be free from accountability. Secondary liability is a longstanding component of tort law, and as so many here have pointed out copyright infringement is a tort, i.e., a civil wrong under the law.

Of course not "no matter what belief". Clearly my comment relates to the subject matter of ACTA, SOPA and PIPA. Content producers do make valid points that comport with law, among others, just like those opposed also make valid points. This same scenario played out when the DMCA was being debated, and an accommodation between opposing sides was reached and embodied in the statute that was ultimately enacted.

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In the last 20 years, I've read and studied a fair number of copyright litigation in regards to how it affects American society. But I'm not here to get into some large baseless battle with you. You seem intent on delineating from arguments that weaken your claims.

No, I haven't studied every minutiae of copyright going back to the 1940s. But I sure know the big ones: The DMCA, PRO-IP, NET Act, Home Audio and Recording Act, and Sony v Betamax. I haven't read all of TJ's works, but I understand that he was extremely skeptical of copyright and patents for a number of reasons.

What's really wearing is how you seem to constantly want to put the impetus on others to describe their view as if you come from an argument of authority. I understand what the law is supposed to allow. I also understand that ACTA changes US copyright policy, particularly since Obama signed it into law without approval from Congress.

So rest assured, I have my own knowledge of the bills, and copyright law. I'd probably suggest you may want to look at the economic affects of copyright law and how people avoid them. You seem to be lacking in those areas.

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Just a general observation to try and ascertain why rights conferred under current law are deemed subordinate to others.

Because the other rights are in the Bill of Rights, while only the power to create copyright is in the Constitution. Copyright itself is merely statutory, and probably doesn't fulfill its constitutional purpose either. That's why it's less important than, for example, the right to free speech.

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"Baseless battle"? If one makes a declarative statement of law as you have on many occasions, it seems quite fair to ask the basis upon which one is relying. For example, claims are being made by many persons here that ACTA has many legal infirmities. My questions are directed to where in ACTA are such infirmities manifested to that I can understand what is being said and why.

Merely by way of example, you state "ACTA changes US copyright policy." This is a very broad statement indeed, and if you are inclined to make such a statement then the very least I believe you should do is back it up with concrete examples that are embodied in the ACTA text.

By the way, if you are truly interested in learning about the history of copyright law within the US, the following site should prove helpful as it tracks the law from 1783 to date:

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Merely by way of example, you state "ACTA changes US copyright policy." This is a very broad statement indeed, and if you are inclined to make such a statement then the very least I believe you should do is back it up with concrete examples that are embodied in the ACTA text.

After reading the ACTA, I know that it's using a lot of vague words. There's very little in regards to concrete language that gives consumers (remember, the people that benefit the most from copyright) anything close to fair use rights. I followed the time when the ACTA was leaked and noted how the negotiators did their best to resist groups such as KEI. It could have been worse. The biggest problem is how the ACTA can be interpreted in two or three different ways. That's one of the problems.

The main issue I have with copyright is how it does quite little to actually help those that insist on it getting stronger and stronger. If it's helping out US society in keeping it, then why does it seem so geared towards destroying homes, criminalizing what most consider normal behaviour and penalizing people for just wanting to live their lives out normally?

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"There are two procedures under the Constitution through which the United States becomes a party to international agreement."

This would be "b. International Agreements Other Than Treaties ... (The term "executive agreement" is appropriately reserved for agreements made solely on the basis of the constitutional authority of the President.)" sounds like.

Seems like the part that applies here is "(2) Agreements Pursuant to Legislation The President may conclude an international agreement on the basis of existing legislation or subject to legislation to be enacted by the Congress;"

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Is there any way to escape the FUD trap? I'm too young to be jaded, but I'm having trouble seeing large scale opinions being formed without _marketing_ them (whether morally justified or not). Does the legal system consistently protect against this kind of "cleverness contest"?

Sorry, you made this comment awhile ago and it's kind of changing the subject besides. Thanks for your replies on this topic though, I have found them very informative and feel like I understand this issue a lot better now.